Secretary of State for Health & Ors v Servier Laboratories Ltd & Ors

A confidential European Commission decision may be disclosed in national proceedings where access is necessary for the parties and the court, provided that adequate safeguards protect confidential information. A confidentiality club may include senior lawyers, civil servants and ministers where the constitutional and practical structure of the claimant bodies makes their involvement necessary. A tiered disclosure regime, restricted use, identified recipients, destruction obligations and the possibility of further directions can provide sufficient protection.

The claimants sought disclosure by Servier of the confidential version of a European Commission decision concerning Servier. The court required access so that the parties could review their cases and so that it could comply with its duty under Article 16 of Council Regulation (EC) No. 1 of 2003. The Commission raised concerns about third-party confidentiality, the breadth of the proposed confidentiality club and possible use in other proceedings.

The parties agreed most amendments but disputed whether disclosure should be limited to a small group of lawyers or should extend through a two-tier structure to relevant civil servants and ministers.

1. The court ordered disclosure of the confidential Commission decision subject to the revised confidentiality order. The court accepted that both the parties and the court required access to the original version.

2. The safeguards were sufficient to protect confidential information. They included named or court-approved recipients, restrictions on disclosure outside the club, destruction or inaccessibility of copies at the end of the proceedings, and limitation of use to the proceedings or new proceedings for the application of Articles 101 and/or 102 TFEU.

3. A two-tier structure was appropriate. Professional advisers and designated first-tier recipients could receive the decision initially. Disclosure to second-tier recipients could occur where the claimants’ solicitors reasonably considered it necessary to obtain instructions.

4. The confidentiality club could not realistically be confined to in-house lawyers. Lawyers required instructions from civil servants, who were accountable to ministers. The constitutional need to obtain instructions ultimately from politicians justified their inclusion, subject to the order.

5. The court relied on the principle, illustrated by Postbank NV v Commission Case T-353/94, [1996] ECR II-921, that confidential Commission documents may be disclosed in national-court proceedings, while recognising the need for effective protection of confidential information.

6. If specific concerns emerged after disclosure, Servier or an interested third party could apply for further directions. The order was made in the revised form, subject to a minor renumbering amendment.